People walking along an open sewer in an unidentified African town (John Wollworth/Shutterstock.com).

The next administration and Congress need to reach a compromise on immigration. The continuing battle on the status of illegal immigrants is leading to enormous political divisions and fueling the identity politics of multiculturalism on the both the left and right. For me the compromise must reflect four imperatives. First, it should recognize the reality that we cannot deport millions of people without turning ourselves into a temporary police state—harmful not only to illegal aliens but to our citizens. Second, it should make sure there is a substantial penalty for those who broke the law. Third, the compromise must secure the border of the United States against further such immigration on a massive scale and contain a trigger to verify that security has taken place before those who broke the law benefit from the compromise. Fourth, the compromise should make it easier for highly skilled immigrants to come to the nation, because welcoming more such immigrants will benefit America, not least by continuing our tradition of assimilating talent from overseas.

First, ultimately the compromise will have to provide a legalized status to many aliens who entered illegally so long as they have not violated other laws. Catching all those who have come here illegally is impractical. It would also require a law enforcement presence so heavy as to affect adversely many law abiding citizens, particularly those who share the ethnicity of immigrants who have come here illegally. Moreover, since many of those who came here illegally have had children born here who are citizens by virtue of the 14th amendment, mass deportations would result in the tearing asunder of children from parents.

Second, the legislation should make it clear that coming into America illegally was wrong. Fines will not prove adequate to make this point either expressively or practically.

Editor’s note: This Fourth of July oration was first delivered by G. M. Curtis III on July 1, 1989 in Lone Mountain, Montana, for a conference on American citizenship.

As an American historian and as an American citizen who looks forward to the 21st. century, I place great stock in John Adams’s early 19th. century exhortation to future generations that they remember and celebrate the signing of the Declaration of Independence. Technically speaking, I suppose that we are jumping the gun by about one day, since the Continental Congress first agreed to the Declaration on the 2nd. of July 1776. Actually, the past five days in one way or another has represented a remembrance and a reconsideration of many of those values and beliefs that John Adams cherished enough to tender the ultimate sacrifice: his life and property. It is altogether fitting and proper, then, as my historical footnote for these discussions and as a remembrance of the Declaration of Independence, to return to the first principles therein contained, principles that not only retain their merit today, but more importantly, offer us hope for the years to come.

Confirming ordinary experience, the polls leave no doubt that the majority of Americans now regard the U.S. government as more a threat than a protector, acting beyond law or popular control. How government in America became “them” rather than “us,” what government’s loss of legitimacy means for this country, and whether lost confidence and legitimacy may be reclaimed any more than virginity, are questions we must ponder.

The key question is what does the phrase, “subject to the jurisdiction thereof” mean? The prevailing view, at least in our political class, and among activists, is that it means subject to any jurisdiction. Hence most Americans, even lawyers who ought to know better, think that the children of people who came to America on tourist visas, or no visa at all, are American citizens.

The rancor over immigration policy obscures what should be its central concern—the perpetuation of the principles of the Declaration of Independence and the Constitution. Every major immigration reform of the past ninety years, including the Gang of Eight’s bloated proposal, betrays this same deficiency. Each successive law has focused on parts of a policy, emphasizing this or that interest, this or that racial or ethnic preference. Some are worse than others, but all evade what should be the primary concern—the fostering of self-governing citizens.

Conservatives are disappointed and are searching for reasons for the disappointing electoral outcome. In whom or what are they disappointed? A tempting approach is to adopt the inevitableness of changing demographics framework of the left. The left regularly focus on the story of the marginalized—women, minorities, the young and the poor—gaining ascendancy or being victimized. And certainly these four groups were active in this election and were important in delivering the presidency to Obama and perhaps the Senate to the Democrats. It would appear that it is the old white guys who held power previously that are now the victims! But that is delicious revenge for the left. Because it is all about power; you old white guys have had your turn. Now it is our turn.

But there is nothing destiny deciding or inevitable about the impact of these four categories.

I have written elsewhere that the primary task of the Progressive state is the rearing of good citizens. In this way Progressives participate in a very ancient conversation about citizen virtues and the common good. To understand them well, one ought to pay close attention to the cave wall, to the images and ideals they craft in order to play on widely accepted moral principles and, then, to alter or shape those principles in an ongoing reeducation campaign. Progressivism is, first and foremost, a moral vision and its power rests squarely on how compelling democratic citizens find that moral vision. The rearing of good citizens requires, as a result, first deceiving citizens by “framing” policy alternatives in such a way as to tap into the linguist moral resources of the people and then, second, altering the moral framework by steady efforts at reeducation by several key institutions like the media, the judiciary, higher education, but especially government schools.

About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.